Ukraine on the Edge

Need for Dialogue on Institutional Reform

Too many of the statements being made by foreign officials on the political crisis growing in Ukraine over the past three weeks have described it as a clash between pro-Western values and Russian imperialism. But talking about values will not provide a solution to the dispute. Instead all parties should shift their attention back to institutional reform.

The government’s crackdown on protesters, and their pushback, makes the start of a dialogue on reform all the more urgent to avert a serious outbreak of conflict. Ukraine’s President Viktor Yanukovych has an interest to accept previously European Union (EU) recommended reforms because his only alternatives are a violent deadly security operation or illegal overthrow. Opposition leaders should accept dialogue on institutional change instead of the government’s resignation, which they are currently calling for, as this has little chance of happening constitutionally.

Much time has been lost over the past weeks with the focus on values rather than institutions. On Monday, European Commission President Jose Manuel Barroso made an emotional appeal for a push back against “the revival of the old demons of Europe, like extreme nationalism, like xenophobia, sometimes racism.” He called on Europeans to fight against these negative values to keep alive the EU’s promises of hope and freedom. To underline his point, Barroso added, “If sometimes in Europe some of us have doubts about how important these [European] values are, just look at Ukraine. Those young people in the streets of Ukraine, with freezing temperatures, are writing the new narrative for Europe.”

Russian Foreign Minister Sergey Lavrov, on the other hand, at the Organization for Security and Cooperation in Europe (OSCE) meeting of foreign ministers in Kyiv last week, lashed out against the “aggressive imposition of neoliberal interpretations of human rights.” He enumerated a host of grievances. In the trade and economic sphere he accused the EU of creating a “with us or against us” logic. He called for the establishment of a single economic space from the Atlantic to the Pacific, requested cooperation in a wide range of spheres but did not once mention working together in establishing democratic institutions to advance the rule of law and human rights.

Swedish Foreign Minister Carl Bildt responded directly to Lavrov’s criticism about human rights, stating that OSCE’s vision “is not compatible with either selective adherence to the universal norms, values and standards, or the idea of competing spheres of influence and threatening and bullying one’s neighbors.”

It’s of little surprise that European officials are referring to the values of democracy, freedom, respect of human rights, and the rule of law that bind them together in the EU and give them the moral high ground.

But what is new is the Russian government’s push back against what it depicts as “European values,” especially the promotion of lesbian, gay, bisexual, and transgender (LGBT) equality, feminism, sexual health and reproductive rights education, and euthanasia for minors, an issue currently being debated in Belgium. Through apparent support given to shadowy NGOs, sometimes called Parents Committees, in Armenia, Ukraine and Moldova, it has sought to denigrate these supposed “values” and style Russia as a defender of “traditional” family morals. This latest focus on values is another way for Russia to encourage its neighbors to join the Eurasian Union. Earlier it used its doctrine of “sovereign democracy” and talked about “spheres of privileged interests” or “civilizational unity” to justify interventions in former Soviet countries.

This battle over values has fed into conflict in Ukraine, but it offers no way to solve it. The focus on values by outsiders buries the real source of Ukraine’s current problems: weak unaccountable institutions. The demonstrations that started at the end of November after the Ukrainian government suspended preparations to sign Association and Deep and Comprehensive Free Trade Agreements with the EU where initially led by protesters captivated by the EU’s promises. But after police beat up the mainly student crowd on December 1 the mood changed and much larger numbers gathered because people were tired of their unaccountable government, enfeebled institutions, and rampant corruption.

The people in the street are no longer fixated on values. What the protesters urgently want is to change the way they are government. Most simply want President Yanukovych to go. The ability of parties with opposing political ideologies to together lead the demonstrations attests to this.

Last time Ukraine was in such a crisis in 2004 during the Orange Revolution, the main political camps started negotiations almost immediately, and the Supreme Court had enough power to serve as an arbitrator. It was possible for a compromise to be struck and for the demonstrators to go home knowing that they had succeeded in obtaining new elections and the victory of Viktor Yushchenko. In 2004 institutions provided the way out of the conflict.

Prospects for a similar quick happy end have disappeared. Ukraine’s institutions no longer provide the depoliticized functions needed to regulate conflict. In 2010 the Constitutional Court, encouraged by President Yanukovych, reversed a reform introduced in 2004 which had given more power to the parliament. Ukraine is again a presidential republic. The Supreme Court’s powers were significantly curtailed in 2010 while the president has regularly intervened in the work of the Constitutional Court by dismissing judges. To make the government fall or to impeach the president requires between two thirds and three fifth of MPs support hence the failure of no confidence motion last Tuesday and the unlikeliness that the opposition’s current demand that Prime Minister Mykola Azarov resign will be met. Even if new elections were held tomorrow, there is little trust in the electoral system and the ability of the media to offer equitable access during the campaign.

In this environment, Catherine Ashton, EU’s representative for foreign affairs and security policy, arrived on December 10 to talk to all parties, including civil society groups, and ask for an investigation into the violence against peaceful protesters. A few hours after her discussions with President Yanukovych police launched an operation to clear Independence Square, now re-baptized Euromaidan. Over the past weeks, she has made several statements condemning police excessive use of force to no avail.

Ashton came to Ukraine weeks after succeeding in helping mediate an agreement with Iran on the nuclear issue, where she could offer the carrot of starting to lift EU sanctions, and between Kosovo and Serbia, where the promise of further EU integration is a major incentive. In Ukraine the EU does not have a comparable enticement after efforts to sign an Association Agreement was put on hold by the Ukrainian side.

But in this highly charged environment, where the imposition of martial law seems increasingly possible, the EU can offer a clear road map out. Unlike other external parties including Russia and the United States, it defined a long list of institutional reforms needed in Ukraine already in 2009. EU foreign ministers reaffirmed the requirements last December. They called on Ukraine to ensure that its elections comply with international standards, to address the issue of selective justice and prevent its recurrence (this should not only apply to the case of former Prime Minister Yulia Tymoshenko), and to implement a wide range of other reforms especially in the judiciary, the fight against corruption, and public finance management.

Ashton’s contribution could be to work with the opposition leaders and activists to help them formulate demands that shift from calls for government resignation to government reform along the lines previously advocated by EU’s states. Only when these reforms are done, can Ukraine sign an Association Agreement anyway.

Brussels initially hoped that the promise of an Association Agreement would be enough to get President Yanukovych to make institutional changes. It was not because reforms had the potential of undermining the president’s grip on power and economic assets.

But now it is no longer Brussels that is pressing for change, but the hundreds of thousands who are in Kyiv’s streets. Yanukovych's incentive to make sweeping reforms is now concrete if he has any desire to avoid a violent crackdown that will bring more chaos and should trigger western sanctions such as visa bans and asset freezes.

Despite all the distrust and anger about the last week’s injustices, if Yanukovych pledges to fast track reform, opposition and civil society activists should agree to enter a dialogue with the government to work out implementation. They should prioritize establishing a reliable electoral system to be in place for the 2015 presidential elections or even earlier if Yanukovych agrees to early polls. If the recent deterioration in elections standards is not addressed, and reliable polls guaranteed, another cycle of protests will reappear after the next elections. The EU has a blueprint to avoid this and to get out of the current crisis but the Ukrainian government and the opposition have to take it on board first.

The revolution that will occur when Ukraine’s judiciary, elections, and system of public finance management are overhauled, and corruption tackled, will be much less exciting but also more sustainable than what happened in 2004 or could still occur if the situation keeps developing as it is in 2013.

Sabine Freizer is a senior fellow with the Dinu Patriciu Eurasia Center and the Transatlantic Relations Program.